Barach v University of New South Wales & Ors

Subparagraphs 98.9(hh) and 98.9(kk) 10Mr Blackburn takes issue with the adequacy of the particulars provided in subparagraphs 98.9(hh) and (kk) of the University's defence. Both of those subparagraphs plead occasions in which it is alleged that Dr Barach described himself in what is alleged were false or misleading terms. 11The short point is that the proper particulars of the description have not been provided and should be. Counsel for the University, Mr Sibtain, accepts that they will. I will order what I will define as the usual particulars be provided in respect of the descriptions in 98.9(hh)(i) and 99(kk)(i), namely that on or before 13 September 2013, the first defendant specify to the plaintiff in respect of each of the descriptions referred to in 98.9(hh)(i) and 98.9(kk)(i): in what form the alleged description occurred; to the extent that the alleged description was given in writing, identify the document; the facts, matters and circumstances said to give rise to a responsibility on the part of the plaintiff for its distribution; to the best they can to whom the description was given and, to the best that they can, when and where the description was given.

Subparagraph 98.15(f) 12Mr Blackburn SC points to subparagraph 98.15(e) which refers to an email identified in subparagraph 98.15(f) and pleads that in that email Dr Barach, in substance and "contrary to the fact, [represented] that he possessed a licence to practise medicine in Australia, knowing such a representation to be false". He referred to a potential ambiguity as to whether the phrase "in substance" picks up more than the express words of the email. Without spending too much time on it the best course in my view is to order the University, on or before 13 September 2013, to specify the facts, matters and circumstances upon which it is alleged that the plaintiff represented "that he possessed a licence to practise medicine in Australia" in subparagraph 98.15(f) of its amended defence.

Subparagraph 98.16(a) to (d) 13The next point made by Mr Blackburn SC concerns the pleadings in subparagraph 98.16(a) to (d) which allege that longer than a decade ago Dr Barach made some false statements about his time in the Israeli Defence Forces and whether he had run the Boston Marathon. 14The point, for the purposes of particularisation, is the absence of proper particulars of the representation. All that has been provided is the identity of the recipient of the representation who is apparently overseas. 15I think the best course is to order what I have described as the usual particulars in [11] be modified by inserting "representation" instead of "description" in relation to the representation in 98.16(a), and substituting "statement" for "description" in relation to 98.16(c). As the recipient is overseas, time will allow the University to at least make email contact with him to obtain further details. I will order that they be provided on or before 13 September 2013.

Subparagraph 98.16(f) 16Subparagraph 98.16(f) alleges that during a particular negotiation in 2006 the plaintiff made a false representation about what position he held at the University of Miami. The pleading does not identify when, how or to whom the representation was made. Understandably Mr Blackburn SC seeks those particulars. 17Mr Sibtain has indicated at the moment his client only has some evidentiary material which appears to support the bare allegation but does not know much further. I think the best course is to simply order that on or before 13 September 2013 the University provide to the plaintiff all such material in its possession upon which it bases that allegation. 18In the event that the University becomes aware either from discovery from the plaintiff or via its own inquiries of the appropriate particulars of the representation it is to be understood it should give them to the plaintiff forthwith.

Subparagraphs 98.20(o) to (y) 19Mr Blackburn SC has made complaint in respect of what is set out in particulars 98.20 (o) to (y) of the defence. Subparagraph 98.20 of the defence is entitled "Mismanagement by the Plaintiff". The part that the complaint is made of is entitled "Mismanagement of IRMRC [NSW Injury Risk Management Research Centre] and Mary Potter-Forbes' Work". 20This arises because one of the imputations pleaded in the second amended statement of claim includes an allegation that the plaintiff was incompetent in his job as a director of the IRMRC. The University has, by its defence, sought to justify those imputations, if they are made out. 21In terms of the future progress of the proceedings, these parts of the pleadings warrant scrutiny. What is to be avoided is some sort of roving Royal Commission into every aspect of the management of the IRMRC, not just on grounds of whether it reveals the plaintiff acted honestly, but also matters affecting competence. Just as with allegations of dishonesty, some degree of precision is required about allegations of incompetence so as to enable the trial judge to manage the hearing effectively. 22Ultimately, Mr Blackburn SC's submission was that this part of the defence should be struck out. 23The defence recites various things that were said to have been found by a review of the IRMRC that was conducted by an accounting firm. The particulars suggest that some trenchant criticisms were made of a member of senior staff within the IRMRC whom it was said was appointed by the plaintiff and reported to the plaintiff. The particulars allege the plaintiff was responsible for her supervision. 24One difficulty with the pleading can be identified at the outset. Subparagraph 98.20(y) alleges that: "In the premises, the plaintiff did not adequately manage the finances of the IRMRC and permitted fund money to be misused." 25The reference to the "premises" must be to those parts of the defence that precede it. There is nothing that precedes that part of the defence which could support the allegation that the plaintiff "permitted fund money to be misused". Although I accept, as Mr Sibtain submitted, that this was not intended to convey an allegation that the plaintiff consciously allowed such money to be misused, in my view, that is the only sensible reading. Accordingly, even if it were not for the view that I was to form about the balance of this part of the pleading, that part of 98.20(y) would be struck out. 26The broader complaint concerns the paragraph that precedes this, namely 98.20(x). It recites that, "[I]n the circumstances", the plaintiff: "(i) failed to prevent [the senior manager] from misusing the funds of the IRMRC. (ii) failed to adequately supervise [the senior manager]. (iii) relied too heavily upon [the senior manager] for operational information and the financial management of the IRMRC. (iv) ought to have taken further steps to familiarise himself with the nature of the financial management, relationship and dynamics of the IRMRC before deciding to place such heavy reliance upon [the senior manager]." 27The difficulty with the second, third and fourth matters in these allegations is that the "circumstances" that are referred to - that is, the facts, matters and circumstances that precede this in the pleading - do not enable the plaintiff to know, for example, what steps he should have taken to "adequately supervise" the senior manager, what level of reliance was appropriate and what was not in respect of the senior manager, and what further steps he should have taken to familiarise himself with the nature of the financial management. 28It might be said that these are all the sort of matters that could be identified with the provision of further particulars. However, in the context where this form of allegation is such that, in my view, it has a significant potential to cause real problems at the hearing, I think the only appropriate course is that the relevant part of the pleading be struck out with a view to the plaintiff identifying and pleading with better precision what it is said that proper management involved. 29In particular, the revised pleadings will have to involve more than simply reciting what the accounting firm's report found. Instead, the University will need to make positive allegations as to what were the management difficulties at the IRMRC, what were the responsibilities of the plaintiff, and what it is said he should have done but did not. 30In relation to the first allegation, namely that the plaintiff failed to prevent the senior manager from misusing the funds of the IRMRC, the allegations that preceded could be said to support this. There is at least one paragraph that identifies what the alleged misuse of the funds was. An earlier paragraph recites the plaintiff's responsibility for the misuser's supervision, although the precise steps he should have taken to prevent that occurring are not identified. 31Nevertheless, given that I will ultimately allow the first defendant leave to re-plead these allegations, and bearing in mind what was submitted by counsel on their behalf, I think the better course is to strike out the entirety of (o) to (y). 32Accordingly, subparagraphs (o) to (y) of paragraph 98.20 of the defence are struck out. I will direct that any further pleading addressing those matters be filed and served by 13 September 2013.

Subparagraphs 98.20(nn) to (ww) 33Mr Blackburn SC seeks the striking out of subparagraphs (nn) to (vv) of paragraph 98.20 of the defence. The observations I have just made in relation to subparagraphs (o) to (y) apply equally to these paragraphs, ie they form part of an overall allegation of mismanagement. 34The essence of the allegations is that some time around December 2008, the plaintiff made a poor management decision to divert resources away from certain unspecified matters (one of which may be the IRMRC's obligations to NSW Health) and towards the preparation of a large grant application. The difficulty with the parts of the pleading that are objected to is that there are a number of loose and unclear aspects of the allegation. First, subparagraph (oo) refers to the members of the team who had to prepare the funding application being required to attend to "other urgent matters", although they are not specified. 35Second, it refers to them making protestations. They are not particularised. 36Third, subparagraph (ss) refers to the "feelings" of the members of the team as a result of having been given this direction. The relevance of those feelings and whether they were ever expressed is not clear. 37Fourth, subparagraph (tt) refers to the fact that NSW Health became "upset" when it discovered that one member of the team had interrupted the work. 38Fifth, subparagraph (uu) refers to the New South Wales Health "withdrawing its desire of governance in the IRMRC's deed of agreement" without there being any allegation as to whether that was somehow connected to the plaintiff's conduct. 39Sixth, ultimately the allegation in (vv) is that the plaintiff's "conduct" constituted poor staff management, whereas it is not precisely clear what that conduct is. It certainly does include the direction he gave to team management. On the face of the pleading, it would appear to include some allegation that he did not spend enough personal time in assisting the team. 40Considered by themselves, perhaps each of these could be resolved by some letter and particulars. However, overall, given the observations I have just made, I think the better course is to allow the first defendant to attempt to re-plead them, if it so chooses. I do not think these objectionable parts of the pleadings should try to be saved by the provision of particulars. 41Accordingly, I strike out subparagraphs (nn) to (vv) of 98.20 of the amended defence. I order that any further pleading of the first defendant concerning those matters be filed and served by 13 September 2013.

Subparagraph 98.20(xx) 42Mr Blackburn takes objection to the form of the following paragraph in 98.20(xx) of the pleading, namely that: "The plaintiff appointed a [named senior manager] without due process or consultation with staff and in the context of the existing close working relationship and friendship between the plaintiff and [that staff member]." 43At the outset, it should be clear that the University has disclaimed any suggestion that there was anything other than a working relationship between the plaintiff and that staff member. That said, it is clear in my view that the paragraph is inadequate. In particular, the nature of the required process or consultation is not required. 44Further, the reference to "in the context of an existing close working relationship and friendship" leaves open the possibility that the University is asserting that, by reason of that relationship and friendship, the plaintiff in effect cut corners in procuring her appointment. Such an allegation would, if made and established, be a serious matter. 45Accordingly, I strike out subparagraph (xx) in paragraph 98.20. I order that any further pleading which seeks to raise that subject matter be filed and served by 13 September 2013.

Subparagraphs 98.20(ppp) to (llll) 46Mr Blackburn SC takes issue with the form of subparagraphs (ppp) to (llll) of 98.20 of the defence. Subparagraphs (ppp) to (kkkk) deal with the topic of the alleged mismanagement of bullying allegations perpetrated by a senior staff member of the IRMRC. In broad terms, the paragraphs set out the history of certain alleged events at the IRMRC involving the alleged bullying of staff members by that senior staff member and the plaintiff's response. Ultimately, (kkkk) alleges that: "By reason of the plaintiff's unsatisfactory handling of the complaints that had been made, and his unsatisfactory reaction to the making of those complaints, the plaintiff's management of staff was extremely poor." 47The fundamental difficulty is that the precise unsatisfactory nature of the handling of the complaints and the "unsatisfactory reaction" is not specified. 48Subparagraphs (bbbb) and (cccc) to an extent address that topic, but they have their own problems as a matter of form. 49I think the most appropriate course is to strike out (bbbb), (cccc) and (kkkk) and allow the first defendant liberty to re-plead those paragraphs on the understanding that it will bring in a pleading that will identify, with precision, what conduct of the plaintiff was said to constitute the mismanagement of the bullying perpetrated by others. Of course, if no such pleading is to be brought in, then the balance of the subparagraphs will ultimately have to be removed. 50Subparagraph (llll) is entitled "Effects of Bullying on IRMRC Staff". It asserts that the plaintiff's conduct had a deleterious effect on staff members. This is said to include two named persons who are said to have suffered various medical conditions. 51The problems with the paragraph are that not all the staff members are identified, not all the effects are identified and, most fundamentally, the precise conduct of the plaintiff that is said to have had those effects is not identified. I will strike out those paragraphs. 52Accordingly, I order that paragraphs 98.20(bbbb), (cccc), (kkkk) and (llll) be struck out. 53I grant the first defendant leave to file and serve an amended pleading, re-pleading the subject matters that have been struck out on or before 13 September 2013.

Subparagraphs 98.20(mmmm) to (xxxx) 54The next matter that I was taken to by Mr Blackburn SC concerned sub-paragraphs (mmmm) to (xxxx) of subparagraph 98.20 of the amended defence. These subparagraphs allege that some conduct of the plaintiff in arranging or suggesting that a pro forma document of the IRMRC be altered amounted to some form of mismanagement. 55The principal difficulty with the particulars is that it is completely unclear as to exactly what it is said that the plaintiff did that was objectionable and why that unspecified conduct amounted to mismanagement. 56The course I will adopt is not to strike out any part of these particulars, but, indeed, to direct the first defendant to file and serve an amended defence which identifies the matters I have just referred to, namely, the conduct in 98.20(mmmm) to (xxxx) said to constitute mismanagement and why it was mismanagement on or before 13 September 2013. Failing that occurring, I would expect that the plaintiff would then move to strike out these particulars.

Subparagraph 98.20 (zzzz) 57The final complaint made in relation to subparagraph 98.20 of the defence concerns subparagraph (zzzz). It contains a number of disparate allegations concerning occasions where the plaintiff was said to have either rescheduled meetings shortly prior to their commencement, scheduled meetings at inconvenient times or otherwise issued unwarranted criticisms to staff for not turning up at meetings. Three particular criticisms are made by Mr Blackburn SC. 58The first concerns subparagraph (zzzz)(ii). It has been clarified that sub-subparagraph (ii) is said to be in and of itself an example of the scheduling of a meeting at an inconvenient time. 59Second, it is said in the pleading in subparagraph (zzzz)(iii), which alleges that on a number of occasions the plaintiff criticised staff members for not showing up to management meetings, et cetera, lacked particularity as to what those occasions were. It is accepted that particulars are required. Accordingly, I will order the first defendant to provide to the plaintiff on or before 13 September 2013 the best particulars it can of the occasions identified in that subparagraph, namely, the time, location, the identity of the staff members and what the plaintiff said or did. 60Third, subparagraph (zzzz)(v) refers to "multiple occasions" where the plaintiff was said to be inconsistent in his dealings with a staff member. I will order the first defendant to provide on or before 13 September 2013 the best particulars it can of the date, time and location of the "occasions" referred to in that subparagraph.

Subparagraphs 98.21(a) to (c) 61The next complaint made by Mr Blackburn SC concerns an allegation pleaded in paragraph 98.21 of the defence at subparagraphs (a) to (c) to the effect that the plaintiff deserted the Israeli Defence Forces. 62In subparagraph (c) it is pleaded that after receiving a form of special dispensation "the plaintiff declared he would not be coming back and did not return to Israel to complete his service". When pressed upon this, counsel for the University said that the allegation is not the making of the declaration, but the simple fact that the plaintiff did not return. 63In those circumstances, I think the best course is simply to strike out the words "declared he would not be coming back and". Thus the relevant allegation in 98.21(c) would be that he did not return to complete his service. 64In subparagraph 98.21(b) there is recited various facts about the plaintiff and his alleged dealings with the Israeli Defence Forces. In particular, it is said that he sought special permission to leave to go to a medical school, on the condition that he would return, that he agreed to this arrangement and signed a document to that effect. The University has indicated that this is based upon some information provided by a witness and it would need further details from the witness before it can provide further particulars of the allegation. Consistent with an earlier ruling that I made, I will allow it time to obtain those instructions and provide those particulars. 65Accordingly, I order the first defendant to notify the plaintiff on or before 13 September 2013 of the facts, matters and circumstances said to justify the assertion that, (a) the plaintiff sought special permission to leave the Israeli Defence Forces to go to Harvard Medical School, (b) the plaintiff received special dispensation to do so on condition he would return to Israel after one year at Harvard and, (c) the plaintiff agreed to that arrangement and signed a document to that effect. I further order that any documents recording the permission, dispensation or agreement be supplied to the plaintiff on or before 13 September 2013.

Subparagraphs 98.21(k) and (l) 66The next set of complaints about the pleading concern subparagraphs (k) and (l) of subparagraph 98.21 of the amended defence. These concern conduct said to have been engaged in by the plaintiff while he was engaged at Massachusetts General Hospital in 1998. It is alleged that his conduct amounted to dishonest and untrustworthy behaviour on his part. Hence there is a need for as much particularity and specification as possible. 67In subparagraph (k) it is alleged that at some point the plaintiff claimed that the number of days he was owed by that hospital in respect of attending an operating room was incorrect and that his obligations to the hospital should therefore be waived. It appears to be asserted that that claim was false. The present difficulty is that the particularisation of the claim is inadequate. By reason no doubt of the passage of time and the fact it occurred overseas it is understandable perhaps that the University does not have all the details to hand. Nevertheless, having made this allegation and as it is said to be a matter demonstrating dishonesty, it is incumbent upon it to do the best it can to obtain further details. 68In those circumstances I will order the University on or before 13 September 2013 to provide the best particulars it can to the plaintiff of the form in which the claim in subparagraph 98.21(k) was made, to the extent it was oral what was said, when it was said, where it was said and to whom it was said, and to the extent that it was written to identify the written document and to whom it was given. 69A similar complaint is made in relation to subparagraph (l). It alleges that a particular "pattern had emerged of [the plaintiff] claiming that that hospital's residential schedule was wrong and otherwise making up excuses in order to evade his clinical obligations". The same observations I have just made apply. 70Accordingly, I order that on or before 13 September 2013, the University provide to the plaintiff the best particulars it can of each occasion that the plaintiff made a claim of the type identified in 98.21(l)(i), stated he was not available as alleged in 98.21(l)(ii), made a request as alleged in 98.21(l)(iii) and supplied excuses as alleged in 98.21(l)(iv).

Subparagraphs 98.21(o) to (gg) 71The next set of complaints made by Mr Blackburn SC concerns the various subparagraphs between (o) to (gg) in 98.21. This also concerns certain conduct said to have been engaged in by the plaintiff when engaged by the Massachusetts General Hospital. Again it is said that his conduct was dishonest. 72Subparagraph (o) asserts that the plaintiff had to be "coerced into completing certain remaining days he was obliged to do in the operating room" and that this was the subject of "negotiation" between him and a professor. The circumstances and details of this alleged coercion are not identified. I think the only course is to order the University to provide the facts, matters and circumstances said to support the allegation of coercion to the plaintiff on or before 13 September 2013. 73Next, subparagraph (p) refers to an alleged occasion when the plaintiff called in to the hospital that he was ill and in the meantime had allegedly travelled to California to visit his family. I will order the University to provide the best particulars it can of the date of the occasion referred to in subparagraph (p) on or before 13 September 2013. 74Similarly, subparagraph (t) alleges that the plaintiff did not attend a particular course "despite being specifically requested to do so", but the details of the request have not been supplied. I will order the first defendant to provide as best it can the facts, matters and circumstances said to support the allegation of the making of a request in 98.21(t) on or before 13 September 2013. 75Next, Mr Blackburn SC took me to subparagraph (ee) which, by reference to an abstract that the plaintiff was alleged to have sent to a professor, alleges "the draft abstract took liberties with the interpretation of data and included statements that were unsupported by the facts". In context, this appears to amount to an unparticularised allegation of serious misconduct in an academic or hospital setting. As a matter of form it cannot survive. I will strike out that paragraph. I will give the first defendant leave to file and serve an amended pleading addressing that topic on or before 13 September 2013. 76Mr Blackburn SC also objects to the form of the pleading in subparagraph (gg)(ii) of 98.21 which asserts that the plaintiff was "arrogant and egotistical" and that on an occasion when he was "confronted" he is said to have dismissed the need to fulfil his obligations. The particular difficulty is the nature of the confrontation is not pleaded anywhere else in the defence. 77Accordingly, I will order the first defendant to provide to the plaintiff the best particulars it can of the date, location and the words spoken and by whom during the confrontation referred to in subparagraph (gg)(ii) of 98.21 or before 13 September 2013. 78Finally, I will strike out the words "appeared to only attend" in sub-paragraph in 98.21(gg)(iii). I grant the plaintiff immediate leave to amend that paragraph so that it will now read: "The plaintiff was opportunistic in that he only attended the CMS during his patient safety fellowship in order to take advantage of the opportunity to meet visitors from Israel." 79I direct the first defendant to bring in a form of pleading containing that paragraph on or before 13 September 2013.

Subparagraphs 98.21(ii) to (oo) 80The next issue raised by Mr Blackburn SC concerns subparagraphs 98.21(ii) to (oo). They all concern the alleged submission by the plaintiff of a false abstract to a medical conference in the United States in the late 1990s. Subparagraph (oo) sets out a reasonably specific basis for alleging that he had acted in a dishonest manner. The particular problem is that 98.21(ii), which sets out a number of facts concerning the allegation, is manifestly lacking in particulars. 81Mr Blackburn SC applied to strike it out because of that absence. I think, in light of the subsequent paragraphs which provide more detail, the more appropriate course is to require the provision of particulars. Ordinarily the court would not engage in formulating those particulars but given the need for this case to move on, it will do so. Accordingly I will order the first defendant to provide to the plaintiff on or before 13 September 2013 the following further and better particulars of paragraph 98.21(ii) of the defence, namely: (1)An identification of what constitutes the "abstract" referred to in subparagraph 98.21(ii). (2)The facts, matters and circumstances said to constitute the act of the plaintiff in "press[ing] to present" on the identified topic as a speaker at the identified conference. (3)The facts, matters and circumstances said to support the allegation that the plaintiff "represented himself as a fellow from the [Centre for Medical Simulation in Cambridge, Massachusetts]". (4)The facts, matters and circumstances said to support the alleged obligation on the part of the plaintiff to obtain approval from the CMS for the submission of an extract. (5)The extent of the experience that it is said was required of a person to present knowledgeably on the topic of "mock codes", as alleged in subparagraph 98.21(ii)(iii). (6)The facts, matters and circumstances said to support the allegation that the plaintiff "represented that a certain amount of work had already been completed" in 98.21(ii)(iv). (7)The requisite work it is alleged the plaintiff should have but did not complete in order to submit the abstract as referred to in subparagraph 98.21(ii)(v).

Subparagraph 98.21(pp) 82In relation to paragraph 98.21(pp), Mr Blackburn SC seeks the striking out of that paragraph. In broad terms it alleges that while working at the Massachusetts General Hospital the plaintiff manipulated a call schedule for his own benefit by swapping night-time calls with other resident doctors, but then not returning the favour. 83It culminates in an allegation that "as result of the plaintiff's dishonesty and mismanagement the responsibility of administering a call schedule was taken from the plaintiff". The difficulty with this is that, properly analysed, there does not seem to be any allegation of dishonesty in the preceding part of the paragraph. There are other difficulties in terms of particularisation. Given the serious allegations contained within the paragraph, the only proper course is to strike out the paragraph. 84I order that paragraph 98.21(pp) of the amended defence be struck out. I grant the first defendant leave to file a further pleading addressing that topic on or before 13 September 2013.

Subparagraphs 98.21(rr) and (ss) 85The next part of the pleading objected to by Mr Blackburn SC is subparagraphs (rr) and (ss) in paragraph 98.21 of the amended defence. The allegations in those subparagraphs relate to the period of time the plaintiff was employed in the Department of Anaesthesia and Critical Care at the University of Chicago around 2002. The allegations culminate in the assertion that the plaintiff was "untrustworthy, intimidating and exhibited poor conduct as a medical practitioner". 86Subparagraph (rr) commences by stating that during the relevant period "the plaintiff refused to abide by the rules that had been set down by the Department". Needless to say this question begs what rules and what refusal? What follows appear to be two examples which also require further particulars. In the end, I do not think this is a paragraph that can be simply saved by the provision of particulars. If it is to be maintained, it must be re-drafted. I will strike out subparagraph (rr). 87I grant the first defendant leave to file any amended pleading addressing the topic of that subparagraph on or before 13 September 2013. 88Subparagraph (ss) states as follows: "During this period, the Department received many complaints in relation to the plaintiff's behaviour, including that he was condescending to his subordinates and often inappropriate with patients." 89Of course, this subparagraph is completely lacking in appropriate particulars. However its fundamental problem is that it is not clear whether it is seeking simply to recite the fact of the making of complaints or is asserting what was complained of is true. 90As I stated earlier, ultimately someone has to preside over a trial of this case. The more vague the various allegations are, the more difficult the trial will become. In a context where the matters alleged are so old but are nevertheless said to support an allegation the plaintiff was untrustworthy, intimidating and exhibited poor conduct, then the precise conduct he is alleged to have engaged in must be clearly alleged. 91I will strike out subparagraph (ss) of 98.21. I grant the first defendant leave to file any amended pleading addressing the topic of that paragraph on or before 13 September 2013.

Subparagraphs 98.21(tt), (uu) and (vv) 92The next set of complaints made by Mr Blackburn SC concern subparagraphs (tt) and (uu) of 98.21. They culminate in an allegation that in 2003 an anonymous evaluation of the plaintiff by a junior doctor gave him a poor rating and included comments he engaged in various forms of inappropriate behaviour. Ultimately, for the reasons I have just given, this aspect of the pleading is completely defective. The defendant will have to make it clear whether it accuses the plaintiff of engaging in that behaviour or not. A mere recital of what an anonymous evaluation alleged about the plaintiff is not an appropriate form of pleading to support an allegation that he was "untrustworthy, intimidating and exhibited poor conduct as a medical practitioner". 93I will strike out subparagraphs (tt) and (uu) of 98.21. I grant the first defendant leave to file an amended defence adding those topics on or before 13 September 2013. 94Subparagraph (vv) is in the same subcategory as the ones that I just addressed. I order that it be struck out. I grant the first defendant leave to file an amended defence addressing the topic of that subparagraph on or before 13 September 2013.

Subparagraphs 98.21(ww), (xx) and (yy) 95The next set of allegations said to be defectively pleaded appears to be that, after a review by the relevant Department at the University of Chicago, it was discovered that the plaintiff's rate of successfully placing catheters was below that experienced by other doctors. This allegation appears to be intended to support the overall contention that he "exhibited poor conduct as a medical practitioner". 96It seems amazing that a trial about what really in the end will be his honesty and character will descend to this type of minutiae. However, if this allegation is to be pursued, it is conceivable it might indeed involve some expert evidence. Most significantly the precise facts need to be alleged so that the parties can make an informed assessment of what evidence is required. At the moment it is not clear what the connection between having a 60 percent success rate when inserting catheters and exhibiting "poor conduct" is. I will strike out paragraphs (ww), (xx) and (yy) of 98.21. I grant the first defendant leave to file an amended defence addressing the topics referred to in those paragraphs on or before 13 September.

Subparagraphs 98.21(aaa) 97Subparagraph 98.21(aaa) alleges various improper behaviour by the plaintiff while employed at the University of Chicago. The individual allegations are devoid of particulars. More significantly, it is not clear where the allegations lead in terms of demonstrating the ultimate truth of the matters that the first defendant must establish to make out its defence. The only proper course is to strike out subparagraph (aaa) and allow the first defendant leave to file an amended pleading addressing the subject matter of that paragraph on or before 13 September 2013.

Subparagraphs 98.21(bbb) to (ddd) 98In relation to subparagraphs (bbb) to (ddd) of 98.21 I will order the first defendant to provide the following particulars on or before 13 September 2013, namely: (1)the facts, matters and circumstances surrounding each of the "requests" referred to in subparagraph (ddd) of 98.21; and (2)the facts matters and circumstances said to amount to each of the occasions on which the plaintiff insisted on taking the action referred to in subparagraph (ddd)(i) of 98.21.

Subparagraphs 98.21(dddd) to (eeee) 99In relation to subparagraph (dddd) of 98.21 this falls into the same category as an earlier paragraph that I have dealt with (at [82] to [84]). I order that the paragraph be struck out. I grant to the first defendant leave to file an amended defence addressing that topic on or before 13 September 2013. 100In relation to subparagraph (eeee) of 98.21 I order the first defendant to provide to the plaintiff the following particulars on or before 13 September 2013: (1)Such copies of the letter referred to in the particulars that the first defendant has in its possession and failing that, the best particulars it can provide identifying the letter; (2)A statement of the alleged text that is alleged the plaintiff "lifted verbatim" as referred to in subparagraph 98.21(eeee)(i); (3)The title of the "work authored by Martin Hatlie" as referred to in subparagraph 98.21(eeee)(i); and (4)The facts, matters and circumstances concerning the "confrontation" referred to in (eeee)(ii), including the date, location, participants and what each of them said to the best that those matters are known to the first defendant.

Subparagraph 98.21(ffff) 101In relation to subparagraph 98.21(ffff) Mr Blackburn SC objects to the form of that paragraph which alleges various managerial style transgressions by the plaintiff when he led the Patient Safety Centre at the University of Miami in 2003 to 2004. The paragraph is devoid of any details or particulars. I do not think that it can be saved by attempting to specify the particulars that should be provided. The better course is to strike it out. Accordingly, I strike out subparagraph (ffff) of 98.21. I grant leave to the first defendant to file an amended defence on or before 13 September 2013 addressing that topic.

Subparagraphs 98.21(gggg) to (jjjj) 102Mr Blackburn SC has taken objection to paragraphs (gggg) to (jjjj) of 98.21. They allege some form of misconduct on the part of the plaintiff arising from the inclusion of the name of a particular academic on a grant application. Mr Sibtain accepts that those paragraphs simply cannot stand in that current form. I think the best course is to strike out (gggg) and (jjjj) and allow the first defendant leave to replead if it wishes to do so. Accordingly, I strike out subparagraphs (gggg) to (jjjj) of 98.21. I grant the first defendant leave to file an amended defence on that topic on or before 13 September 2013.

Further matters - subparagraph 98.21(pppp) 103I direct that the amended defence to be filed by the first defendant cross-reference the particular matters identified to the imputations that are sought to be justified.

Costs 104Following the giving of reasons and making of orders in relation to each of the objected parts of the Second Amended Statement of Claim, Mr Blackburn SC sought an order that the first defendant pay the plaintiff's costs of the application in respect of the amended defence on an indemnity basis and that such costs be payable forthwith. I will return to that application shortly. 105Partly by way of response, Mr Sibtain submitted that there should be an order in his client's favour in respect of the costs of various arguments that had occurred in respect of discovery. Mr Burke, the solicitor for the second, third, fourth, fifth, sixth and eighth defendants, also sought the costs of discovery. 106The background to that is that one of the matters that was initially listed to be determined today was a dispute that had arisen between the parties about categories of documents for discovery. It appears that there had been previous orders for the exchange of categories. A great deal of discussion and correspondence took place in an effort to reach agreement over those categories. As is sometimes the case, the process of seeking to agree on categories proved to be counter-productive. Often what appear to be significant disputes about the width of various categories fall away, or at least are minimised, when the documents over which there is no dispute are supplied. 107In the end result, this morning I was advised by the parties that they had agreed to proceed by way of general discovery defined by the issues raised by the pleadings. They accepted that that involved departure from the usual process envisaged by the Uniform Civil Procedure Rules 2005 and thus would require the Court to otherwise order. However, it was submitted that in light of the amount of time and cost expended in arguing over categories of documents, this was seen as the best way of progressing the matter. I accept their judgment on this issue. I will make the proposed orders in respect of discovery that have been handed to me, initialled by me and placed with the papers. The result is that that aspect of the matter has been resolved. 108However, there remained the question of costs of the dispute over discovery. It was clear from the submissions that there was no agreement as to costs. In the ordinary course this would then bring into play those principles that operate in respect of the awarding of costs where the substantive dispute between the parties has been resolved by consent (see Re Minister for Immigration and Ethnic Affairs (Cth); ex parte Lai Qin [1997] HCA 6; 186 CLR 622). This led to the most passionate debate of the day between who had been the right and the wrong about the approach to discovery. 109However this debate involved no more than assertion and counter-assertion from the Bar table. In those circumstances I think the only sensible course in relation to the costs of the application for general discovery is to reserve those costs and to allow any of the parties the opportunity to apply by motion for some special order for the costs of the debate as to discovery. Thus they will have the opportunity to bring forward evidence and attempt to bring themselves within the principles that I have referred to. 110This brings me back to the question of the costs of the dispute as to particulars. By and large the plaintiff has been overwhelmingly successful in that dispute. It seeks costs on an indemnity basis because it submits that the opposition to the application was persisted with in circumstances where the University should have known it had no real prospects of resisting most, if not all, of the applications made by the plaintiff. 111From the limited material available to me it does seem that the University was probably distracted in dealing with discovery rather than focussing its mind on the dispute over particulars. However, two things should be noted. First, fundamentally it is its pleading and it must bear responsibility for any defects that are in it. Secondly, by and large, the correspondence reveals that the defects that have been identified were brought to its attention. 112Further, if those defects are not addressed then the real likelihood is that the matter will either not proceed to a hearing in any sensible way or, if it does, that the hearing will be difficult and protracted. I am conscious of the difficulties that may be imposed upon a defendant in seeking to maintain a defence of truth. However during the hearing it became increasingly clear that the second half of the amended defence to the Second Amended Statement of Claim had a number of fundamental problems, some of which have been endeavoured to be dealt with by way of particulars and some of which had been dealt with by striking out and granting liberty to replead. 113I appreciate that the first defendant may have had many matters to consider as it approached this hearing. However, ultimately I accept that it should have realised that, by and large, the plaintiff's complaints were justified and should have been met with either detailed particulars or a commitment to replead. In my view there are two consequences that will flow from that. 114The first is that I will make an award of indemnity costs, although it will be at the figure of 90 percent to reflect the modest success that the first defendant had in respect of some of the aspects of the pleading argument. The second is that I will order that those costs are payable forthwith. I accept that both of these are exceptional courses in what is protracted litigation in which presumably there have been a number of cost orders made. 115However, at the risk of repetition, I repeat the difficulties that these aspects of the defence present to the hearing. In particular it seems to me that once the defence moves away from seeking to demonstrate outright dishonesty by the plaintiff, then the difficulties in its pleading as a matter of form and ultimately probably as a matter of substance come to the fore. In particular the real difficulties that they present to the proper hearing of the proceeding have been exposed during the hearing. My concerns about how they impact upon case management are additional matters that, in my view, warrant the orders that I will make. 116Accordingly, I order the first defendant to pay 90 percent of the plaintiff's costs of its application for further particulars and to strike out parts of the amended defence on an indemnity basis. I order that those costs be payable forthwith.

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